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Religious Freedom Laws vs. Equal Protection of Rights

The problem with religious freedom laws (such as Indiana passed recently) is not that they may allow private parties to discriminate against homosexuals; it is that they legally discriminate against nonreligious people. They carve out special legal status for religious people and thus violate the basic principle that government morally must treat all individuals equally under the law.

That said, the proper solution is not to repeal protections of the rights of religious people; it is to extend the same protections to all individuals via generalized law. Consider an analogy. If a government taxed atheists at a higher rate than it taxed religious believers, that would be horribly unjust, but it would also be unjust to tax all believers at the higher rate. The proper solution would be for government to treat all people equally by lightening the tax burden of atheists, thereby moving in the direction of fully respecting people’s rights to their wealth. Likewise, regarding religious freedom laws, the proper solution is not for government to violate the rights of religious people as severely as it violates the rights of everyone else; it is for government to stop violating the rights of everyone else, too.

With religious freedom laws, does government protect the rights of religious people to a greater extent than it protects the rights of nonreligious people? Consider two major aspects of religious freedom laws, starting with potential discrimination by private parties against gays.

Critics of Indiana’s law as originally passed “feared [it] would have allowed discrimination [by private parties] against the lesbian, gay, bisexual and transgender community,” as USA Todayreports. (Cato’s Roger Pilon agrees that’s what the law would do, although apparently the measure merely explicitly stated what broader law already implicitly allowed.) In response to widespread criticism, Indiana lawmakers agreed to “fix” the law by nullifying this aspect of it; “Indiana Republicans . . . announced sexual orientation and gender identity will be explicitly protected in the new law” as amended, USA Today reports. Governor Mike Pence signed this “fix” on April 2.

The leftist website Media Mattersargues that the original Indiana law was unique among religious freedom laws in America in that it was the only one that allowed private parties to discriminate against gays. If that’s right, now that Indiana’s law has been revised, no religious freedom law in the country allows private parties to discriminate against gays.

However, as German Lopez reports for Vox, private discrimination against homosexuals is de facto legal in twenty-eight other states that “don’t have civil rights laws that would prohibit discrimination against LGBT people in the workplace, housing, and public accommodations (hotels, restaurants, and other places that serve the general public). It’s not the religious freedom laws that allow discrimination; it’s the lack of civil rights laws [sic].” Ironically, then, with the latest legal change, Indiana has now outlawed private discrimination against homosexuals whereas before such discrimination was legal.

The main question in this regard, then, is do private parties have a (moral) right to discriminate against homosexuals by denying them service? Or, conversely, do homosexuals have a (moral) right to have government force private businesses to serve them?

Note that the basic legal question is not whether it is immoral to discriminate against homosexuals because of one’s religious beliefs. The proper purpose of government is not to outlaw everything some citizens deem immoral; if government attempted to do so, it would achieve a fascist police state on the order of 1984. Rather, the proper purpose of government is to outlaw violations of individual rights (a narrow range of immoral acts, specifically, those involving the initiation of physical force) and to act only to protect rights.

Although it is immoral for private parties to discriminate against homosexuals by refusing them service or the like, such denial of service violates no one’s rights. Rights are not merely what some group or government says they are; rights are objective principles recognizing people’s proper freedom of action in a social context. (For details, see “Ayn Rand’s Theory of Rights: The Moral Foundation of a Free Society.”)

Each individual has a right—whether or not government recognizes it—to the product of his effort and to freedom of association. A “right” to the product of someone else’s effort—whether a wedding cake, a pizza, an automobile, or an Internet cable—would inherently violate the producing party’s rights of property. It would also violate a business owner’s freedom of association by forcing him to associate with (i.e., serve) those whom he does not want to associate with. Government’s proper role here is to protect individuals’ rights to property and association even when they behave immorally, not to force bigoted business owners to serve gays. (Of course, individuals also have a right to denounce and boycott businesses of which they disapprove.)

Regarding religious freedom laws, government ought not give religious people special exemptions to use their property and to associate as they see fit; rather, government should equally recognize the rights of all individuals to do so.

The second major aspect of religious freedom laws is that they protect religious people from government abuses. It is well and good to protect religious people from government abuses; however, the law should equally protect all people from such abuses. Ultimately, there should not be religious freedom laws; there should just be laws that protect everyone’s freedom.

Mollie Hemingway offers some examples of government abuses in her recent article for the Federalist. Consider her first example:

Just a few weeks ago, on March 10, the federal government returned the eagle feathers it had seized nine years prior from a Native American religious leader and famed feather dancer Robert Soto. [It is illegal even to possess certain feathers in the United States without special government permission.] He had appealed the seizure of the eagle feathers, for which he faced 15 years in a federal penitentiary and a $250,000 fine, on Religious Freedom Restoration Act grounds.

It is good that the federal government did not steal Soto’s feathers or lock him in a metal cage for fifteen years for possessing feathers; Soto’s possession of feathers obviously violates no one’s rights. But why should only religious people be protected from such egregious violations of their rights by government? Every individual should be so protected. An individual shouldn’t have to believe some irrational religious creed in order not to be assaulted by government.

Groups do not have rights, whether a group of homosexuals or a group of religious people. Rights pertain to individuals, and government has a moral responsibility to recognize the equal rights of all individuals. Although it would be wrong for government to violate the rights of religious people more severely than it does already, ultimately religious freedom laws should not exist. They should be replaced with freedom laws—laws that establish freedom for everyone equally.

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3 Responses to Religious Freedom Laws vs. Equal Protection of Rights

Good article. Your final paragraph is particularly succinct.
I have dedicated a considerable proportion of my adult life to biblical research. So the latest controversy is disturbing to me.
I have found that when people of good will use reason to establish peace and prosperity for society, they will always promote liberty for all. It is only reasonable.

Ari: As usual, you provide a dimension to a discussion that has been widely overlooked. You say that discrimination against GLBT individuals by other citizens is immoral. Yet, discrimination against an entire subclass of our population has been practiced for decades by Governmental agencies, universities, and other institutions. It is called “Affirmative Action” and is still widely practiced in the name of “Diversity”. The subclass to which this practice is directed is non-Hispanic, Caucasian, Heterosexual adult males. In the University setting, you have to add oriental male and female applicants. So, while it is all right to use the full coercive power of the State to discriminate against these folks with grand abandon, it is apparently sacrilegious for a private citizen to decline to participate in a “same-sex” pair bonding for whatever reason or non at all.

With the passage of the Civil Rights Act in 1964 and the several follow-on civil rights laws, discrimination by businesses offering “public accommodations” was outlawed along with discrimination in a number of other areas. These laws were probably necessary to break the back of the “jim crow” laws (widespread in the south) that required discrimination against blacks and sometimes other groups. (The “jim crow” laws were clearly immoral.)

Restrictions in our Constitution are applied to the activities of government (Federal and through the 14th amendment the states) that affect individual rights. Individuals and privately owned businesses usually were free to do as they wished.

The systematic and law driven discrimination that existed in the past has been fully eradicated some 50+ years after the 1964 Civil Rights Act. The continuation of rights limiting policies by government to “make up” for prior discrimination (that occurred before a large portion of our population was even born) has run its course.

Individuals and private businesses should be allowed to discriminate as they might wish. Then the market will sort it out. If hotel chain “X” discriminated against certain individuals (who might be part of identifiable groups) then the market will let them experience the approval or disapproval of that policy. We no longer need government to interfere.

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